Turek v. Zoning Board of Appeals ( 2020 )

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JACK E. TUREK ET AL. v. ZONING BOARD
OF APPEALS FOR THE CITY OF MILFORD
(AC 41824)
Alvord, Devlin and Pellegrino, Js.
Syllabus
The defendant zoning board of appeals appealed from the judgment of the
trial court sustaining the appeal filed by the plaintiff landowners. After
a hurricane destroyed their home, the plaintiffs sought to construct a
new home on their property. The plaintiffs filed an application for a
variance from the building height requirements of certain zoning regula-
tions. The board denied the application, and the plaintiffs appealed to
the trial court, alleging that the board acted illegally, arbitrarily and in
abuse of its discretion by ignoring certain legal hardships unique to the
property. The trial court sustained the plaintiffs’ appeal, concluding that
the plaintiffs demonstrated an unusual hardship on the basis of the
destruction of their previous home and the need to comply with applica-
ble federal and state flood elevation requirements, and that their pro-
posal qualified under the narrow exception to the hardship requirement
set forth in Adolphson v. Zoning Board of Appeals (205 Conn. 703),
because the proposed house would reduce nonconformities in relation
to the previous house. Thereafter, this court granted the board’s petition
for certification to appeal to this court, and this appeal followed. Held:
1. The trial court incorrectly concluded that the plaintiffs demonstrated a
legally cognizable hardship: an applicant for a variance must show that,
because of some peculiar characteristic of his property, a strict applica-
tion of the zoning regulation would produce an undue hardship, and
the plaintiffs here failed to carry their burden of demonstrating a legally
cognizable harship as the record of the proceedings before the board
contained no evidence of hardship originating in the zoning ordinance
because the evidence merely established that the plaintiffs could not,
in the absence of a variance, build the type of house that they desired
while conforming to flood elevation requirements; although the plain-
tiffs’ proposed home did not increase substantially the square footage
when compared to their prior home, the plaintiffs’ alleged hardship
arose out of their desire to build a certain type of home, which was
appropriately characterized as personal disappointment.
2. The trial court erroneously determined that the plaintiffs’ proposal quali-
fied under the Adolphson exception to the hardship requirement:
although the plaintiffs argued that the board should have granted a
variance because it would reduce other nonconformities, the plaintiffs’
proposed new construction would create a height nonconformity where
none previously existed, and the plaintiffs provided this court with no
authority suggesting that the board was required to grant the requested
variance from the height limitation, which would create a new noncon-
formity, on the basis of a proposed reduction or elimination of other
nonconformities and compliance with flood regulations.
Argued November 18, 2019—officially released February 25, 2020
Procedural History
Appeal from the decision of the defendant denying
the plaintiffs’ application for a variance from the city
of Milford’s zoning regulations, brought to the Superior
Court in the judicial district of Hartford, Land Use Liti-
gation Docket, and tried to the court, Hon. Marshall
K. Berger, judge trial referee; judgment sustaining the
appeal, from which the defendant, on the granting of
certification, appealed to this court. Reversed; judg-
ment directed.
Kevin J. Curseaden, for the appellees (plaintiffs).
Matthew B. Woods, for the appellant (defendant).
Opinion
ALVORD, J. The defendant, the Zoning Board of
Appeals of the City of Milford (board), appeals from
the judgment of the trial court sustaining the appeal
filed by the plaintiffs, Jack E. Turek and Donna Weaver,
and reversing the decision of the board that the plain-
tiffs were not entitled to a variance. On appeal, the
board claims that the trial court erroneously sustained
the appeal, and causes us to consider (1) whether the
plaintiffs demonstrated a legally cognizable hardship,
and (2) whether the plaintiffs’ proposal qualifies under
the exception to the hardship requirement set forth in
Adolphson v. Zoning Board of Appeals, 205 Conn. 703,
710, 535 A.2d 799 (1988), and its progeny.1 We reverse
the judgment of the trial court.
The relevant facts and regulatory background are
as follows. The plaintiffs own property located at 59
Hillside Avenue in Milford (property). The property
measures approximately 4076 square feet and is situ-
ated between Long Island Sound to the east and Hillside
Avenue to the west. The property, which is narrow in
shape,2 slopes downward from 13 feet above sea level
at Hillside Avenue to between 8.3 and 8.9 feet above sea
level at the shore. The property was originally created
in 1901. The city of Milford (city) first enacted zoning
regulations (regulations) in 1930. The property is
located within the R-5 residential zone. The regulations
require a minimum of 5000 square feet of land on each
building lot located in an R-5 zone.3 See Milford Zoning
Regs., art. III, § 3.1.4.1. Accordingly, the lot is a legal
nonconforming lot. See Milford Zoning Regs., art. XI,
§ 11.2. The regulations also specify that in an R-5 zone
the maximum building height permitted is thirty-five
feet and the maximum lot coverage permitted is 65
percent. Milford Zoning Regs., art. III, § 3.1.4.1. Building
height is defined in the regulations in part as ‘‘[t]he
vertical distance measured in feet from the average
existing level of the ground surrounding the building
or addition thereto and within ten (10) feet thereof up
to the midpoint height of a pitched roof or up to the
level of the highest main ridge or peak of any other
type of structure, or the total number of stories in a
building including basements and/or half-stories.’’4 Mil-
ford Zoning Regs., art. XI, § 11.2. ‘‘Building Height
Within A Flood Hazard Area’’ is separately defined in
the regulations as ‘‘[t]he building height as defined
above, but including all portions of a building situated
below the regulatory flood protection elevation and all
portions of basements or cellars that extend above the
finished grade adjacent to the building.’’ Milford Zoning
Regs., art. XI, § 11.2. The average elevation of the prop-
erty is 10 feet and 8.4 inches above sea level.
Prior to Hurricane Sandy in late October, 2012, there
existed on the property a single-family residence. The
two-story residence, which was more than 100 years
old, measured 1500 square feet. There were two other
structures, a detached garage and a shed, on the prop-
erty. Hurricane Sandy destroyed the residence, which
was later demolished, and since that time the lot has
remained vacant.
The entire property, which is split between the AE
Flood Zone and the VE Flood Zone, is within a special
flood hazard area. The regulations incorporate by refer-
ence the areas of special flood hazard identified by the
Federal Emergency Management Agency (FEMA) and
the accompanying Flood Insurance Rate Maps (FIRM).5
Milford Zoning Regs., art. V, § 5.8.2.6 The Code of Fed-
eral Regulations (code) defines ‘‘[a]rea of special flood
hazard’’ in relevant part as ‘‘the land in the flood plain
within a community subject to a 1 percent or greater
chance of flooding in any given year. . . .’’ 44 C.F.R.
§ 59.1. The regulations also identify the VE Flood Zone
as a coastal high hazard area. Milford Zoning Regs., art.
V, § 5.8.2, and art. XI, § 11.2. The code defines ‘‘coastal
high hazard area’’ as ‘‘an area of special flood hazard
extending from offshore to the inland limit of a primary
frontal dune along an open coast and any other area
subject to high velocity wave action from storms or
seismic sources.’’ 44 C.F.R. § 59.1; see also Milford Zon-
ing Regs., art. XI, § 11.2 (containing similar definition
and stating that ‘‘[t]he area is designated on a FIRM as
Zone VE or V’’).
The regulations provide that ‘‘[a]reas of special flood
hazard are determined utilizing the base flood eleva-
tions (BFE) provided on the flood profiles in the Flood
Insurance Study (FIS)7 for a community. BFEs provided
on a [FIRM] are only approximate (rounded up or down)
and should be verified with the BFEs published in the
FIS for a specific location.’’ (Footnote added). Milford
Zoning Regs., art. V, § 5.8.2. ‘‘Base flood’’ is defined in
both the code and the regulations as ‘‘the flood having
a one percent chance of being equaled or exceeded in
any given year.’’ 44 C.F.R. § 59.1; see also Milford Zoning
Regs., art. XI, § 11.2. ‘‘Base flood elevation’’ is defined
in the regulations as ‘‘[t]he elevation of the crest of the
base flood or 100-year flood. The height in relation to
mean sea level expected to be reached by the waters
of the base flood at pertinent points in the floodplains
of coastal and riverine areas.’’8 Milford Zoning Regs.,
art. XI, § 11.2. The base flood elevation for both the AE
Flood Zone and VE Flood Zone where the property is
located is thirteen feet.
The National Flood Insurance Program, administered
by FEMA, ‘‘makes federal flood insurance available to
communities that impose a minimum standard of flood-
plain management regulation, generally imposed
through zoning ordinances. Every Connecticut munici-
pality participates in the [program]. . . . Under the
[program], participating municipalities must create
land use ordinances that require habitable portions of
new or substantially improved residential structures
within the Special Flood Hazard Area to be elevated to
or above the Base Flood Elevation . . . shown on
Flood Insurance Rate Maps . . . .’’ (Emphasis in origi-
nal; internal quotation marks omitted.) Mayer-Witt-
mann v. Zoning Board of Appeals, 333 Conn. 624, 635,
218 A.3d 37 (2019), quoting W. Rath et al., ‘‘Height
Restrictions on Elevated Residential Buildings in Con-
necticut Coastal Floodplains,’’ Municipal Resilience
Planning Assistance Project: Law & Policy White Paper
Series (2018) p. 2, available at https://circa.uconn.edu/
wp-content/uploads/sites/1618/2018/03/Height-
Restrictions-on-Elevated-Buildings.pdf (last visited
February 18, 2020). Specifically, the code requires that
‘‘all new construction and substantial improvements of
residential structures within Zones A1–30, AE and AH
zones on the community’s FIRM have the lowest floor
(including basement) elevated to or above the base
flood level . . . .’’ 44 C.F.R. § 60.3 (c) (2). Under the
regulations, the board may not accept any application
to perform new construction of a residence ‘‘with a
lowest floor elevation below the regulatory flood pro-
tection . . . .’’ Milford Zoning Regs., art. IX, § 9.2.3 (3).
Additionally, § 25-68h-2 of the Regulations of Connecti-
cut State Agencies, addressing floodplain management
standards, requires an additional one foot of freeboard,9
specifically mandating that new structures designed for
human habitation located within the floodplain be ‘‘ele-
vated with the lowest floor one foot above the level of
the base flood.’’
With that factual and regulatory background in mind,
we turn to the procedural history of the present case.
After Hurricane Sandy destroyed their home, the plain-
tiffs sought to construct a new home on the vacant
property. On May 26, 2015,10 the plaintiffs filed an appli-
cation for variances from the building height and set-
back requirements of the regulations11 and submitted
plans for the proposed residence. The proposed 1600
square foot house would be four stories, with a garage
located on the lowest level and storage and utilities
located on the highest level. The proposed house would
be set further back from Long Island Sound than the
previous house and would be entirely removed from
the VE Flood Zone. It also would cover less of the lot
than the previous structures.
As noted previously, building height as provided for in
the regulations is measured from ‘‘the average existing
level of the ground surrounding the building,’’ in this
case, 10 feet and 8.4 inches above sea level, to the
midpoint of the pitched roof. Milford Zoning Regs., art.
XI, § 11.2. As the trial court noted, were the proposed
house not required to be elevated, the proposed build-
ing, when measured from the average elevation to the
midpoint of the pitched roof, would have been 34 feet
and 11.5 inches high. FEMA regulations, however,
require residences in an AE-13 Flood Zone to be ele-
vated to base flood elevation (thirteen feet above mean
sea level), and state regulations require an additional
one foot of freeboard. See footnote 9 of this opinion.
With the base of the proposed building located at four-
teen feet above sea level, the proposed house, when
measured from the average elevation, would be 38 feet
and 3.1 inches high. Thus, the plaintiffs sought a vari-
ance from the thirty-five foot height restriction.
The board held a public hearing on the plaintiffs’
application on June 9, 2015. Counsel for the plaintiffs
summarized the claimed hardship, including the topog-
raphy of the property and applicable federal and state
elevation requirements. He highlighted other communi-
ties’ amendments to zoning regulations to take into
account base flood elevations in determining building
height. He also argued that the proposed house would
reduce nonconformities in relation to the previous
house and submitted photographs of neighboring prop-
erties in support of his argument that the proposed
house would not be out of character. Three neighboring
residents spoke in opposition to the application, and
four written statements of opposition were received.
Following the conclusion of the public hearing, the
board held the following discussion:
‘‘Chairman [Joseph Tuozzola]: Okay, this hearing’s
closed. What are your thoughts, lady and gentlemen?
‘‘[Board member Sarah] Ferrante: We did hear tonight
that the slope of the land is similar to the others in the
neighborhood so it’s not really a unique lot in that regard
and what applies here would apply to all is something
to consider.
‘‘[Board member Howard] Haberman: Yeah, I think
what I struggle with is the fact that the property and
the way that the grade, mean grade is measured in our,
by the regs, it doesn’t just affect this particular lot, it
affects a lot of lots down there on the shoreline and in
granting this variance for that height we’re in essence
amending the regulations and I don’t think that’s the
purpose of this Board. If it were just [this] particular
. . . lot alone, then I get it, there’s a peculiarity, a hard-
ship but I think it extends beyond just this lot and I
think again, by granting that piece of the variance, the
request would be, in essence, amending the regs and I
don’t think, again, I don’t think that’s the purpose of
this board.
‘‘[Tuozzola]: Mr. Soda.
‘‘[Board member William] Soda: Well, I kind of feel
the same way, it’s not unique to this lot, the contours
on the adjacent lots, and, I mean, as bad as I feel for
these people and would love to see them get their house
going, I mean, you know, I can’t see it.
‘‘[Tuozzola]: Yeah, I’m also sorry that this has been
going on so long and, you know, but I do again feel
that because it’s a new house there are ways to adjust
this and we can’t speculate on how the regulations or
variances might change. So, right now we know what’s
in front of us and we can debate what the actual house,
height of the house would be and we’re saying the
height might be different because the house is built in
a lower spot so that’s what’s really changing it, but I
think there’s still room for improvement here. Any other
comments? I need [a] motion.
‘‘[Haberman]: I have a question about the motion in
terms of the other part of the application, obviously I
have no problem with the other variances they have
requested because given the size of the lot it’s okay to
approve, so I’m wondering whether without prejudice
again or do we split the vote, split the—
‘‘[Tuozzola]: All right so what you’re saying, do you
want to split some things on here and allow some
variances.’’
‘‘[Haberman]: Or deny [without] prejudice to give
them the opportunity.
‘‘[Soda]: Well what if we give them the other vari-
ances, then if they conform to the height they can, is
that possible Stephen.
‘‘[Zoning Enforcement Officer Stephen] Harris: It’s
unusual but possible, you can grant some variances but
not others.
‘‘[Tuozzola]: Well the height is really the issue, so I
don’t know how we can do the other things without
addressing that. How are you going to start building a
house with the variances and the height is still not
addressed. It’s still going to be up for debate.
‘‘[Ferrante]: I’m also hesitant to grant some variance
and not to grant some variances without [an] overall
plan, we’re allowing something without knowing what
we’re getting at that point.
‘‘[Soda]: We would know what we’re getting except
for the height.
‘‘[Ferrante]: Right, I mean, but it is a brand new house
and it could be redesigned another way.
‘‘[Haberman]12: I guess Mr. Haberman’s questions was
how many times can you deny without prejudice, again,
I would think you could.
‘‘[Harris]: That’s up to the board. You can deny with
waivers to reapply as often as you would like.
‘‘[Haberman]: I move to make a motion to deny with-
out prejudice.
‘‘[Soda]: I’ll second that.
‘‘[Haberman]: Reason for the motion obviously the
height is an issue for us but other parts of the application
are okay, there’s room to change the application.’’
(Footnote added.)
The board then unanimously voted to deny the plain-
tiffs’ requested variances. The plaintiffs filed an appeal
of that decision with the trial court. In their July 2,
2015 complaint, the plaintiffs alleged, inter alia, that
the board, in denying the requested variances, acted
illegally, arbitrarily, and in abuse of its discretion when
it ignored evidence on the record of hardship that
FEMA, state, and local regulations require residences
in an AE-13 Flood Zone to be built at thirteen feet
above mean sea level plus an additional one foot of
freeboard,13 and that the FEMA and state regulations
‘‘do not account for how building height is measured
in the regulations.’’ They further alleged that the board
ignored evidence of the legal hardships unique to the
property, including the elevation of the property, which
situated it across the AE 13 and VE 13 Flood Zones;
the narrow width of the property, having only 35.6 feet
of frontage where fifty feet is required; the location
of the property bordering Long Island Sound; and the
topography of the property, in that it slopes downward
from the street to the shore. The plaintiffs also alleged
that the board failed to consider evidence that ‘‘overall
nonconformities on the property would be reduced if
the application were approved . . . .’’
After receiving the parties’ written briefs, the court
held a hearing on the matter on August 9 and December
5, 2017. In its April 4, 2018 memorandum of decision,
the court found that the requested variance would not
‘‘negatively [impact] the comprehensive plan.’’ Specifi-
cally, the court concluded that ‘‘the board’s denial based
solely upon the aesthetic height requirement—which
the plaintiffs’ proposed structure arguably meets—does
not consider the nuances and immediacy of flood haz-
ard or sea level rise and the elevation requirements in
the plan and is thus contrary to law and logic.’’ Turning
to the hardship requirement, the court found that the
plaintiffs had established unusual hardship, which was
not self-imposed, on the basis of ‘‘the total destruction
of the previous home by Hurricane Sandy and the need
to comply [with] applicable elevation requirements.’’ It
further concluded that the plaintiffs’ proposal qualified
under the narrow exception to the hardship require-
ment set forth in Adolphson v. Zoning Board of Appeals,
supra, 205 Conn. 710, in that the proposed house would
reduce nonconformities. For those reasons, the court
sustained the plaintiffs’ appeal. The board thereafter
filed a petition for certification to appeal. This court
granted the petition, and this appeal followed.
Before turning to the claims on appeal, we set forth
the applicable law governing variances and our scope
and standard of review. General Statutes § 8-6 autho-
rizes municipal zoning boards of appeals, inter alia, to
‘‘vary the application of the zoning bylaws, ordinances
or regulations in harmony with their general purpose
and intent and with due consideration for conserving
the public health, safety, convenience, welfare and
property values solely with respect to a parcel of land
where, owing to conditions especially affecting such
parcel but not affecting generally the district in which
it is situated, a literal enforcement of such bylaws, ordi-
nances or regulations would result in exceptional diffi-
culty or unusual hardship so that substantial justice
will be done and the public safety and welfare secured,
provided that the zoning regulations may specify the
extent to which uses shall not be permitted by variance
in districts in which such uses are not otherwise
allowed.’’
‘‘[A] variance constitutes authority extended to the
owner to use his property in a manner forbidden by
the zoning enactment. . . . It is well established . . .
that the granting of a variance must be reserved for
unusual or exceptional circumstances. . . . An appli-
cant for a variance must show that, because of some
peculiar characteristic of his property, the strict appli-
cation of the zoning regulation produces an unusual
hardship, as opposed to the general impact which the
regulation has on other properties in the zone. . . .
Accordingly, we have interpreted . . . § 8-6 to autho-
rize a zoning board of appeals to grant a variance only
when two basic requirements are satisfied: (1) the vari-
ance must be shown not to affect substantially the com-
prehensive zoning plan, and (2) adherence to the strict
letter of the zoning ordinance must be shown to cause
unusual hardship unnecessary to the carrying out of
the general purpose of the zoning plan. . . . Proof of
exceptional difficulty or unusual hardship is absolutely
necessary as a condition precedent to the granting of
a zoning variance.’’ (Citation omitted; internal quotation
marks omitted.) Verrillo v. Zoning Board of Appeals,
155 Conn. App. 657, 678–79, 111 A.3d 473 (2015).
In reviewing a decision of a zoning board of appeals,
‘‘[c]ourts are not to substitute their judgment for that
of the board . . . and decisions of local boards will
not be disturbed so long as honest judgment has been
reasonably and fairly exercised after a full hearing. . . .
Upon appeal, the trial court reviews the record before
the board to determine whether it has acted fairly or
with proper motives or upon valid reasons. . . . We,
in turn, review the action of the trial court. . . . The
burden of proof to demonstrate that the board acted
improperly is upon the [plaintiff].’’ (Internal quotation
marks omitted.) Mayer-Wittmann v. Zoning Board of
Appeals, supra, 333 Conn. 639; see also Richardson v.
Zoning Commission, 107 Conn. App. 36, 42, 944 A.2d
360 (2008) (‘‘Trial courts defer to zoning boards and
should not disturb their decisions so long as honest
judgment has been reasonably and fairly exercised after
a full hearing. . . . The trial court should reverse the
zoning board’s actions only if they are unreasonable,
arbitrary or illegal.’’ (Internal quotation marks omit-
ted.)). ‘‘Because the plaintiffs’ appeal to the trial court
is based solely on the record, the scope of the trial
court’s review of the board’s decision and the scope of
our review of that decision are the same.’’ (Internal
quotation marks omitted.) Mayer-Wittmann v. Zoning
Board of Appeals, supra, 639.14
In order to determine whether the board properly
denied the subject variance, we first must consider
whether the board gave reasons for its action. ‘‘It is well
settled that [w]hen a zoning board states the reasons
for its action, the question for the court to pass on is
simply whether the reasons assigned are reasonably
supported by the record and whether they are pertinent
to the considerations which the commission is required
to apply under the zoning regulations. . . . The court
should not go behind the official statement of the board.
. . . In the absence of a statement of purpose by the
zoning [agency] for its actions, it [is] the obligation of
the trial court, and of this court upon review of the trial
court’s decision, to search the entire record to find a
basis for the [agency’s] decision. . . . Our inquiry
begins, therefore, with the question of whether the
board rendered a formal, official, collective statement
of the reasons for its action. . . .
‘‘That analysis is guided by certain established pre-
cepts. First, individual reasons given by certain mem-
bers of the [zoning agency do] not amount to a formal,
collective, official statement of the [agency] . . . and
are not available to show the reason[s] for, or the
ground[s] of, the [zoning agency’s] decision. . . . Sec-
ond, the remarks of a board member in moving to grant
a variance do not constitute a collective statement of
the basis for the board’s action. . . . Third, it is not
appropriate for a reviewing court to attempt to glean
such a formal, collective statement from the minutes
of the discussion by . . . members prior to the [zoning
agency’s] vote. . . .
‘‘Fourth, our Supreme Court has explained that the
cases in which [it] held that the agency rendered a
formal, official, collective statement involve circum-
stances wherein the agency couples its communication
of its ultimate decision with express reasons behind
that decision.’’ (Citations omitted; emphasis in original,
footnote omitted; internal quotation marks omitted.)
Verrillo v. Zoning Board of Appeals, supra, 155 Conn.
App. 672–74.
In reviewing the meeting minutes, as set forth pre-
viously, we note that, although certain individual board
members offered their thoughts on whether the plain-
tiffs had established a hardship prior to voting on the
application, that discussion does not constitute a for-
mal, official, collective statement of reasons for its
action. See Amendola v. Zoning Board of Appeals, 161
Conn. App. 726, 736, 129 A.3d 743 (2015) (‘‘although
board members discussed the characteristics of the
property and conditions for granting the proposed vari-
ances, the record does not contain a collective state-
ment of the board’s reasons for granting the variances’’).
Board member Haberman’s statement, in moving to
deny the application, that ‘‘obviously the height is an
issue for us,’’ which the trial court relied on as forming
an official reason for the decision, is likewise not suffi-
cient. See Verrillo v. Zoning Board of Appeals, supra,
155 Conn. App. 674 (‘‘the remarks of a board member in
moving to grant a variance do not constitute a collective
statement of the basis for the board’s action’’); see also
Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208–
209, 209 n.12, 658 A.2d 559 (1995) (board’s discussion of
reasons supporting variance before vote and chairman’s
remarks in moving to grant variance did not constitute
collective statement of basis for board’s decision grant-
ing variance). Accordingly, we must search the record
as a whole to determine whether the evidence supports
the board’s decision to deny the subject variance.
I
The board’s first claim on appeal is that the court
erroneously concluded that the plaintiffs had estab-
lished a hardship. The board maintains that the hardship
claimed by the plaintiffs was self-created because ‘‘if
the plaintiffs eliminated one story in the new structure,
or otherwise reduced the structure’s height by 4.5 feet,
they would not need a height variance.’’ We agree with
the board that the plaintiffs failed to establish the exis-
tence of a legally cognizable hardship and the trial court
erred in concluding to the contrary.
As noted previously, ‘‘[a] variance constitutes permis-
sion to act in a manner that is otherwise prohibited
under the zoning law of the town. . . . It is well estab-
lished, however, that the granting of a variance must
be reserved for unusual or exceptional circumstances.
. . . An applicant for a variance must show that,
because of some peculiar characteristic of his property,
the strict application of the zoning regulation produces
an unusual hardship, as opposed to the general impact
which the regulation has on other properties in the
zone. . . . Accordingly, we have [concluded that a zon-
ing board of appeals may] grant a variance only when
two basic requirements are satisfied: (1) the variance
must be shown not to affect substantially the compre-
hensive zoning plan, and (2) adherence to the strict
letter of the zoning ordinance must be shown to cause
unusual hardship unnecessary to the carrying out of
the general purpose of the zoning plan. . . . Proof of
exceptional difficulty or unusual hardship is absolutely
necessary as a condition precedent to the granting of
a zoning variance. . . . Zoning boards of appeals are
authorized to grant variances in cases in which enforce-
ment of a regulation would cause unusual hardship in
order to [furnish] elasticity in the application of regula-
tory measures so that they do not operate in an arbitrary
or confiscatory and, consequently, unconstitutional
. . . manner.’’ (Citation omitted; internal quotation
marks omitted.) Mayer-Wittmann v. Zoning Board of
Appeals, supra, 333 Conn. 640.
The board argues that this court’s decision in Jaser
v. Zoning Board of Appeals, 43 Conn. App. 545, 545–46,
684 A.2d 735 (1996), controls. In Jaser, after a house
was destroyed by a fire, the owner sought a variance
of the setback requirement in order to build a new
house on the property. Id., 546. Prior to submitting their
variance application, however, the plaintiffs submitted
an application to the zoning board of appeals to have
the lot declared a nonconforming building lot, and they
submitted a survey that showed that a house could
be built on the property within the applicable setback
requirements. Id. The board denied the variance appli-
cation, stating the following as its reason: ‘‘It was felt
by those in opposition that there was no evidence pre-
sented to establish a hardship and noted that approval
was granted for the nonconforming lot on the basis
that a structure to be built would comply with setback
requirements.’’ (Internal quotation marks omitted.) Id.,
547. After the trial court sustained the plaintiffs’ appeal,
this court reversed the judgment of the trial court, con-
cluding that ‘‘a hardship was not shown because the
plaintiffs admitted that a house, even though not the
type that they desired, could have been built on the lot
while conforming to the setback requirements.’’ Id.,
547–48.
In the present case, the federal and state mandated
minimum flood elevation requirements combined with
the local height limitation have the effect of limiting
the height of the home that the plaintiffs seek to build on
their property. The plaintiffs maintain that the multiple
requirements ‘‘severely [restrict] what can be built.’’
They do not argue that they cannot build a single-family
residence on their property in the absence of a variance
from the building height regulation. Cf. Mayer-Witt-
mann v. Zoning Board of Appeals, supra, 333 Conn.
648–49 (applicant established that unusual hardship
would result from strict enforcement of height limita-
tion, which would deprive applicant of right to continue
using existing, legally nonconforming accessory struc-
ture, where such structure could not be rebuilt in
absence of either variance from building height regula-
tions or minimum flood elevation requirement). Instead,
as the board emphasizes, ‘‘the need [for a variance]
arises from the plaintiffs’ desire to construct a new
three-story, 1600 square foot house to replace a two-
story, 1500 square foot house.’’
‘‘A variance is not a tool of convenience, but one of
necessity. . . . They are not to be granted when a rea-
sonable use already is present, or plainly is possible
under the regulations, but an owner prefers otherwise.’’
Verrillo v. Zoning Board of Appeals, supra, 155 Conn.
App. 716. Moreover, a property owner’s personal disap-
pointment in the use of his property does not constitute
the legal hardship necessary for the granting of a vari-
ance. See Amendola v. Zoning Board of Appeals, supra,
161 Conn. App. 746 (‘‘[The applicant’s] proposed addi-
tions reflect personal preference, not hardship, and
could be achieved through alternative construction
plans that comply with the regulations. Indeed, the mere
fact that a conforming structure could be built without
the need for a setback variance transforms an alleged
hardship into personal disappointment.’’); Green Falls
Associates, LLC v. Zoning Board of Appeals, 138 Conn.
App. 481, 494, 53 A.3d 273 (2012) (plaintiff ‘‘failed to
show that the inability to build its desired house as a
result of the denial of the variance application is any-
thing beyond a disappointment’’); Michler v. Plan-
ning & Zoning Board of Appeals, 123 Conn. App. 182,
187, 1 A.3d 1116 (2010) (applicant’s ‘‘disappointment in
the use of the subject property, namely, the inability to
build a larger structure,’’ constituted personal hardship
and did not form proper basis for board’s finding of
hardship (emphasis omitted)).
We agree with the board that the record contains
no evidence demonstrating that, in the absence of a
variance from the height limitation, the plaintiffs cannot
build a home on their property that conforms with the
federal and state mandated minimum flood elevation
requirements.15 See Verrillo v. Zoning Board of Appeals,
supra, 155 Conn. App. 696–97 (record did not substanti-
ate finding that hardship arose from inability to comply
with fire or building codes where applicant submitted
no evidence showing that proposed expansion of
existing structure was necessary, rather than prefera-
ble, course to achieve compliance with code require-
ments). In sum, the record lacked evidence of hardship
originating in the zoning ordinance because the plain-
tiffs’ evidence submitted to the board merely estab-
lished that they could not build the type of house that
they desired while conforming to the height limitation.
Thus, although the plaintiffs’ proposed home did not
increase substantially the square footage when com-
pared to their prior home, the plaintiffs’ alleged hard-
ship arises out of their desire to build a certain type of
home; see Jaser v. Zoning Board of Appeals, supra, 43
Conn. App. 548; which is appropriately characterized
as personal disappointment.
To obtain the requested variance, the plaintiffs bore
the burden of demonstrating, on the record of the pro-
ceeding before the board, a legally cognizable hardship.
See Verrillo v. Zoning Board of Appeals, supra, 155
Conn. App. 719–20; see also Amendola v. Zoning Board
of Appeals, supra, 161 Conn. App. 738–39 (applicant
has burden of proving existence of sufficient hard-
ship).16 We conclude that the plaintiffs failed to carry
their burden of demonstrating a legally cognizable hard-
ship and, therefore, the board acted properly in denying
the variance.
II
The board’s second claim on appeal is that the trial
court erroneously concluded that the plaintiffs’ pro-
posal qualifies under the exception to the hardship
requirement set forth in Adolphson v. Zoning Board of
Appeals, supra, 205 Conn. 710. Specifically, it argues
that ‘‘[t]he Adolphson exception does not apply to the
height variance request, because the proposed new
structure does not propose to lessen the structure’s
nonconformity as to height. . . . Adolphson does not
stand for the proposition that the reduction in one non-
conformity allows as a tradeoff the increase in, or cre-
ation of, another nonconformity.’’ (Internal quotation
marks omitted.) We agree with the board that the pres-
ent case does not qualify under the Adolphson excep-
tion to the hardship requirement.17
‘‘In cases in which an extreme hardship has not been
established, the reduction of a nonconforming use to
a less offensive prohibited use may constitute an inde-
pendent ground for granting a variance.’’ Vine v. Zoning
Board of Appeals, 281 Conn. 553, 562, 916 A.2d 5 (2007).
In Adolphson v. Zoning Board of Appeals, supra, 205
Conn. 705, the applicants had purchased property
located in an industrial district 1 zone, on which prop-
erty the prior owners had operated an aluminum casting
foundry, which was a nonconforming use. The appli-
cants purchased the property with the intention of using
it as an automobile repair shop, and sought variances
in order to do so, despite the fact that such use was
prohibited by the town’s zoning regulations in that
industrial zone. Id., 705–706. The zoning board of
appeals granted the requested variances, and neigh-
boring property owners appealed to the Superior Court,
which dismissed the appeal on the ground that ‘‘the
proposed use for the subject property operating under
current regulations as to air pollution and the like would
be far less offensive to the surrounding residents than
a foundry.’’ (Internal quotation marks omitted.) Id., 706.
Our Supreme Court affirmed the judgment of the trial
court on the ground that ‘‘nonconforming uses should
be abolished or reduced to conformity as quickly as
the fair interest of the parties will permit—[i]n no case
should they be allowed to increase. . . . The accepted
method of accomplishing the ultimate object is that,
while the alien use is permitted to continue until some
change is made or contemplated, thereupon, so far as
is expedient, advantage is taken of this fact to compel
a lessening or suppression of the nonconformity.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
710.
In Stancuna v. Zoning Board of Appeals, 66 Conn.
App. 565, 567, 569–71, 785 A.2d 601 (2001), the lot at
issue, which predated town zoning regulations, con-
tained a single-family residence in a commercial zone.
The applicant intended to construct a new commercial
building on the property and sought a variance of the
zoning regulation requiring a twenty foot side yard set-
back, which the zoning board of appeals granted. Id.,
566–67. On appeal to this court following the trial
court’s dismissal of the appeal, this court recognized
the following, citing Adolphson: ‘‘That a variance will
eliminate a nonconforming use constitutes independent
grounds for sustaining the granting of a variance.’’ Id.,
572. Noting that the variance would eliminate the non-
conforming residential use of the property and would
permit construction of a building for commercial use
in a commercial zone, this court affirmed the judgment
of the trial court. Id. In Vine v. Zoning Board of Appeals,
supra, 281 Conn. 559, our Supreme Court applied
Adolphson and Stancuna, in concluding that a zoning
board’s decision to grant a variance was proper because
it reduced a preexisting nonconforming use of the prop-
erty to a less offensive use.
The plaintiffs argue that the facts presented in Hes-
cock v. Zoning Board of Appeals, 112 Conn. App. 239,
962 A.2d 177 (2009), are most similar to those in the
present appeal. In Hescock, the applicants sought to raze
the house located on their property and to construct
a new house. Id., 242. They sought a variance of the
regulation requiring that new construction ‘‘be located
100 feet landward of the reach of the mean high tide.’’
(Internal quotation marks omitted.) Id. The existing
house was located forty-four feet from the mean high
tide, and the proposed new house would be located
forty-seven feet from the mean high tide. Id. The new
house would be compliant with all other flood regula-
tions, including the standards concerning base flood
elevation levels, and would replace the existing home
below the base flood elevation. Id., 242–43, 260. The
board approved the variance, stating that the applica-
tion ‘‘as presented—will diminish existing non-confor-
mity and will address and improve flood zone issues.’’
(Internal quotation marks omitted.) Id., 251. On appeal,
this court concluded that the board’s determination that
the new construction would lessen nonconformities
was substantially supported by the evidence presented
at the hearing, including that the new house would be
set farther from the mean high tide than the existing
one. Id., 260. It further concluded that the law as set
forth in Vine, Adolphson, and Stancuna was applicable
to the circumstances, in that there was ‘‘substantial
evidence that the new construction would reduce and
eliminate existing nonconformities and present less of
a hazard in case of a flood . . . .’’ Id., 260–61. Accord-
ingly, the elimination and reduction of nonconformities
presented an independent basis for granting a vari-
ance.18 Id., 261.
The plaintiffs argue that they are entitled to the
requested height variance under Adolphson, Stancuna,
Vine, and Hescock, on the basis that their proposed
residence would reduce ‘‘nonconformities from the pre-
vious structure.’’ Specifically, they maintain that the
previous nonconformities included the detached garage
in the front yard setback,19 the shed structure on the
property line in violation of the side yard setback, the
residence in violation in the side yard setback, portions
of the residence in the VE 13 Flood Zone which made
it more susceptible to serious flooding, and a finished
floor elevation below the flood line. They argue that
‘‘[t]he proposed plan consolidated all of the noncon-
forming structures on the property into one structure,
which is to be built flood compliant with federal, state,
and Milford regulations.’’ We disagree.
In each of the cases cited by the plaintiff, the appli-
cants sought a variance and their proposal included the
elimination of a nonconforming use or conversion to a
less offensive nonconforming use; see Adolphson v.
Zoning Board of Appeals, supra, 205 Conn. 710 (vari-
ance from regulation prohibiting operation of automo-
bile repair shop justified because such use was less
offensive than prior nonconforming use of foundry);
Stancuna v. Zoning Board of Appeals, supra, 66 Conn.
App. 569–71 (variance from setback requirement was
proper because variance eliminated nonconforming res-
idential use and allowed for conforming commercial
use); or the variance the applicant sought itself consti-
tuted a reduction or elimination of a presently existing
nonconformity. See Vine v. Zoning Board of Appeals,
supra, 281 Conn. 571–72 (variance from minimum
square footage requirement justified because building
two houses on two lots constituted reduction in noncon-
formity of three houses on three lots); Hescock v. Zon-
ing Board of Appeals, supra, 112 Conn. App. 260–61
(variance from setback requirement for proposed new
construction justified by reduction in existing noncom-
pliance with setback requirement and elimination of
noncompliance with all remaining flood regulations).
In the present case, however, the plaintiffs’ proposed
new construction would create a height nonconformity
where none previously existed. These circumstances
distinguish the present case from Adolphson, Stancuna,
Vine, and Hescock. Cf. Verrillo v. Zoning Board of
Appeals, supra, 155 Conn. App. 728 (applicants’ pro-
posed expansion would not result in lesser nonconfor-
mity on applicants’ property and, therefore, Adolphson
exception was not applicable). The plaintiffs have pro-
vided this court with no authority suggesting that the
board was required to grant the requested variance
from the height limitation, which would create a new
nonconformity, on the basis of a proposed reduction
or elimination of other nonconformities and compliance
with flood regulations. Thus, we conclude that the pres-
ent case does not qualify under the Adolphson excep-
tion to the hardship requirement. Accordingly, the trial
court improperly sustained the plaintiffs’ appeal.
The judgment is reversed and the case is remanded
with direction to render judgment dismissing the plain-
tiffs’ appeal.
In this opinion the other judges concurred.
1
The board also claims on appeal that the requested variance would affect
substantially the city of Milford’s comprehensive zoning plan. Because we
conclude in part I of this opinion that the plaintiffs failed to establish unusual
hardship and in part II of this opinion that the plaintiffs’ proposal does not
qualify under the Adolphson exception, it is unnecessary to reach the board’s
claim that the plaintiffs’ requested variance would affect substantially the
comprehensive zoning plan. See Rural Water Co. v. Zoning Board of Appeals,
287 Conn. 282, 296 n.12, 947 A.2d 944 (2008) (declining to address whether
proposed residence would affect substantially comprehensive zoning plan
in light of conclusion that no unusual hardship existed); see also Moon v.
Zoning Board of Appeals, 291 Conn. 16, 18 n.1, 966 A.2d 722 (2009).
2
After noting a slight discrepancy between the plaintiffs’ measurements
and the measurements on the Zoning Location Survey submitted to the
board, the court included in its memorandum of decision the plaintiffs’
measurements of the lot as ‘‘approximately 113 feet long [and] 28.2 feet
[wide] along the shore of the Long Island Sound to the east and with 32
feet of frontage on Hillside Avenue to the west.’’
3
The zoning regulations also require a minimum lot width of fifty feet
and lot depth of seventy feet. Milford Zoning Regs., art. III, § 3.1.4.1.
4
Exempted from the height computation are roof parapets and turrets of
less than three feet, cupolas and domes that do not exceed 15 percent of
the roof area, among other restrictions, and church spires and chimneys.
Milford Zoning Regs., art. XI, § 11.2.
5
The Code of Federal Regulations defines ‘‘Flood Insurance Rate Map’’
as ‘‘an official map of a community, on which the Federal Insurance Adminis-
trator has delineated both the special hazard areas and the risk premium
zones applicable to the community. . . .’’ 44 C.F.R. § 59.1; see also Milford
Zoning Regs., art. XI, § 11.2 (containing similar definition).
6
Section 5.8.2 of the zoning regulations provides, in relevant part: ‘‘The
areas of special flood hazard identified by [FEMA] in its Flood Insurance
Study (FIS) for New Haven County, Connecticut, dated December 17, 2010,
and accompanying Flood Insurance Rate maps (FIRM), dated December 17,
2010, and other supporting data applicable to the [city], and any subsequent
revisions thereto, are adopted by reference and declared to be a part of
this regulation.’’
7
The code’s definition of ‘‘Flood Insurance Study’’ refers to ‘‘[f]lood eleva-
tion study,’’ which is defined as ‘‘an examination, evaluation and determina-
tion of flood hazards and, if appropriate, corresponding water surface eleva-
tions, or an examination, evaluation and determination of mudslide (i.e.,
mudflow) and/or flood-related erosion hazards.’’ 44 C.F.R. § 59.1.
8
The code defines ‘‘[f]lood elevation determination’’ as ‘‘a determination
by the Federal Insurance Administrator of the water surface elevations of
the base flood, that is, the flood level that has a one percent or greater
chance of occurrence in any given year.’’ 44 C.F.R. § 59.1.
9
The code defines ‘‘[f]reeboard’’ as ‘‘a factor of safety usually expressed
in feet above a flood level for purposes of flood plain management. ‘Free-
board’ tends to compensate for the many unknown factors that could contrib-
ute to flood heights greater than the height calculated for a selected size
flood and floodway conditions, such as wave action, bridge openings, and
the hydrological effect of urbanization of the watershed.’’ 44 C.F.R. § 59.1.
As the trial court noted in its memorandum of decision, the plaintiffs
originally contended that state regulations required two additional feet of
freeboard. They later argued that only one foot of freeboard was required.
On appeal, the parties agree that only one foot of freeboard is required.
10
The plaintiffs filed a previous variance application, which was denied
by the board without prejudice in December, 2014.
11
Specifically, the plaintiffs’ requested variances included a ‘‘[r]eduction
in the (south) side yard setback from 10 feet to 8.46 feet . . . [r]eduction
in the (south) deck stairs setback from 8 feet to 4.4 feet . . . [i]ncrease in
number of stories from three to four and . . . [i]ncrease in height from 35
feet to 39.5 feet . . . .’’ (Internal quotation marks omitted.)
As the trial court noted and as the plaintiffs represent in their brief to
this court, the requested variance of the number of stories became moot
as of a change in the regulations permitting four stories, which became
effective in March, 2016. Additionally, the board’s counsel recognized before
the trial court that the board ‘‘had no problem with the first two requested
setback variances.’’ (Internal quotation marks omitted.) Thus, the only issue
before the trial court and this court is the board’s denial of the requested
variance as to the height of the proposed structure.
12
Although the verbatim meeting minutes attribute this remark to board
member Haberman, it appears that another board member was speaking.
13
See footnote 9 of this opinion.
14
Our Supreme Court recently issued a decision addressing the unusual
hardship required to be shown by an applicant for a variance. See Mayer-
Wittmann v. Zoning Board of Appeals, supra, 333 Conn. 624. While the
majority opinion stated that ‘‘the tests for unusual hardship and inverse
condemnation are one and the same;’’ id., 642; it did not alter the hardship
analysis as it would be applied to this case. The parties had the opportunity,
during oral argument before this court, to argue the applicability of Mayer-
Wittmann to the present appeal, and neither contended that it was con-
trolling.
15
During the public hearing, board member Soda repeated a suggestion
that he had made with respect to the plaintiffs’ prior application; see footnote
10 of this opinion; that a change in the type of roof could bring the proposed
house within the height limitation. Specifically, he suggested that the pro-
posed shed roof could be changed to a gable roof. Counsel for the plaintiffs
represented that he had explored this possibility with Joe Griffith, the chief
building inspector for the city, but that it was not permitted under the state
building code because of wind concerns.
Aside from the preceding discussion regarding the roof, the only evidence
in the record of the effect of the denial of the requested variance is a
statement in a document titled ‘‘59 Hillside Ave Height [F]acts,’’ in which
the plaintiffs represented: ‘‘Unless zoning approves a hardship due to the
lot size, slope and location in a flood zone they will require us to remove
[five feet] from the structure. This will remove one floor from the design
which is not forced on any other Milford resident that is not in a flood
zone.’’ This representation alone is not sufficient evidence of hardship.
16
In its principal appellate brief, the board argues that the plaintiffs failed
to prove that their hardship was unique because ‘‘virtually every lot on
Hillside Avenue shares the same characteristics . . . .’’ The plaintiffs chal-
lenge that position by arguing that ‘‘[t]he correct standard is whether other
properties in the same zone are similar, not other properties in the same
neighborhood.’’ (Emphasis omitted.) Because we conclude that the plaintiffs
failed to demonstrate the existence of a sufficient hardship, we need not
address whether any claimed hardship is unique.
17
Before the board, the plaintiffs’ counsel argued as follows: ‘‘[T]he first
sheet of the plans we have submitted shows the proposed dwelling. When
you compare that to sheet 2 which showed the prior development on the
property you can see glaringly that the building area and the lot coverage
especially is going to be reduced. The prior development with the shed, the
garage and the residence on the property showed the lot coverage being
over 70 percent of the property. Our regulations in the R-5 zone permit no
more than 65 percent lot coverage and that is going to be what the proposed
dwelling will be. So actually right [from] the outset we’re reducing or elimi-
nating a nonconformity on the structure, I mean a nonconformity on the
property with the proposed structure. Secondly, the other point I wanted
to make is that by centering the lot we are requesting side yard variances.
I noticed fro[m] the record and the minutes of the prior meeting that didn’t
pose a great problem to the board when you were considering the applica-
tion, but I did want to note and make it part of the record that the proposed
residence is now going to be centered basically in the middle of the property.
It removes a residence that is closer some side yard setback before was
3.6 feet. It had a shed, it was basically right on the property line. It had a
garage which encroached upon the twenty foot front yard setback that’s
required in the zone. So, I think that the overall plan of development for
this new residence really cleans the property up and quite honestly reduces
and eliminates some prior nonconformities with the plan. So really it all
comes down to the height of the building . . . .’’
The board implicitly rejected this argument in denying the variance.
18
We note that Vine v. Zoning Board of Appeals, supra, 281 Conn. 555,
Adolphson v. Zoning Board of Appeals, supra, 205 Conn. 710, Hescock v.
Zoning Board of Appeals, supra, 112 Conn. App. 261, and Stancuna v.
Zoning Board of Appeals, supra, 66 Conn. App. 572, in contrast with the
present case, all involved a reviewing court’s decision to sustain a board’s
granting of a variance.
19
The board correctly maintains that ‘‘the proposed elimination of the
detached garage cannot be considered a reduction of a nonconformity
because there is no minimum front yard setback for accessory structures,
and therefore no violation.’’ See Milford Zoning Regs., art. XI, § 11.2 (defining
accessory building in relevant part as ‘‘[a] building which is clearly incidental
or subordinate customarily in connection and located on the same lot with
the principal building or use’’); see Milford Zoning Regs., art. III, § 3.1.4
(containing only side and rear setback requirements for accessory
structures).